— Posts About Results

Judge Hobgood issues written order declaring tenure repeal unconstitutional

Yesterday, Judge Hobgood issued an order putting into effect his prior ruling enjoining the repeal of teacher tenure in North Carolina.  The ruling rolls back the General Assembly’s attempt to retroactively eliminate public school teachers’ employment protections.   It also relieves school districts of the obligation to offer 25% of their teachers a small raise if they willingly abandon their employment protections.

In the course of litigation, the plaintiffs, represented by Patterson Harkavy attorneys Burton Craige and Narendra Ghosh, produced ample evidence demonstrating that eliminating career status makes it harder for schools to attract and retain quality teachers.  In contrast, the state was unable to produce any evidence demonstrating that career status actually prevented school districts from eliminating ineffective teachers.

Judge Hobgood ultimately determined that the repeal of career status impairs teachers’ contractual rights.  He also found that it “does not further any public purpose because the undisputed facts demonstrate that, under the Career Status Law, school administrators already have the ability to dismiss career status teachers for inadequate performance whenever necessary.  Moreover, eliminating career status hurts North Carolina public schools by making it harder for school districts to attract and retain quality teachers.”

Judge Hobgood’s detailed order can be accessed here.

 

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Victory: Tenure repeal declared unconstitutional

At 11 am this morning, Superior Court Judge Robert Hobgood sided with Patterson Harkavy’s attorneys and ruled that legislation stripping teachers of their vested employment rights violated the North Carolina and the United States Constitutions.

For over forty years, North Carolina public school teachers have been able to earn “career status” after successful completion of a four-year probationary period and a favorable vote by a teacher’s school board.  A teacher with career status can only be demoted or dismissed for good cause, and has the right to a hearing in which he or she could contest a dismissal or demotion decision.  All of North Carolina’s neighboring states provide teachers a comparable system of basic employment protections.

In 2013, the North Carolina General Assembly passed legislation stripping teachers of these employment protections.  The scheme purported to replace career status with a new system, in which teachers would be employed under one-, two-, or four-year contracts.  When a school board fails to renew an experienced teacher’s contract, the new system would deny that teacher any right to a hearing challenging that decision.

Representing a group of teachers and the North Carolina Association of Educators, Patterson Harkavy’s Burton Craige and Narendra Ghosh filed suit challenging the constitutionality of the 2013 legislation.

Today, Judge Hobgood ruled that this legislation violated the United States Constitution’s Contracts Clause and the North Carolina Constitution’s Law of the Land Clause.  The State failed to produce any evidence indicating that the repeal of career status was necessary to accomplish any public purpose.  In contrast, Patterson Harkavy produced the affidavits of school administrators who consistently discussed how career status was not a barrier to removing bad teachers, but instead helped schools attract and retain good teachers despite their low salaries.

This historic victory has received news coverage around the state and the nation, including in the Raleigh News and Observer, the Charlotte Observer, and the Wall Street Journal.

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Voucher victory as Court of Appeals permits preliminary injunction to remain in place

Advocates for private school vouchers suffered another defeat today, as the North Carolina Court of Appeals left in place Judge Hobgood’s order enjoining the state’s private school voucher scheme.

The North Carolina General Assembly enacted the scheme in 2013.  If implemented, it would divert money from North Carolina’s public schools to subsidize private school students’ tuition.  Together with attorneys from the Justice Center, Patterson Harkavy attorneys Burton Craige and Narendra Ghosh represent twenty five plaintiffs who claim the scheme violates various provisions of the North Carolina Constitution.  On February 28, Superior Court Judge Robert Hobgood agreed, finding that it likely violated the requirement that money allocated for public education be used “exclusively” for free public schools.  He therefore issued a preliminary injunction preventing the state from taking any steps to implement the program.

On March 18, proponents of private school vouchers asked the North Carolina Court of Appeals to delay the implementation of Judge Hobgood’s injunction until an appeal could be heard.  Today’s order denies that petition.  The favorable ruling is the first time an appellate court has addressed any issue in this litigation.

The brief order from the Court of Appeals can be found here.

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Win for Burton and Narendra: Court of Appeals Affirms Dismissal of District Attorney Tracey Cline

The North Carolina Court of Appeals has affirmed a trial court order removing Durham District Attorney Tracey Cline from her office.  In re Cline, __ N.C. App. ___, 749 S.E.2d 91 (2013).  Patterson Harkavy attorney Burton Craige acted as court appointed counsel responding to Cline’s appeal of her dismissal.

The controversy has its roots in late 2011, when Cline began making numerous false and outrageous accusations against Durham Superior Court Judge Orlando Hudson, Jr. in public pleadings.  Cline’s behavior lead attorney Kerstin Sutton to petition for Cline’s removal under N.C. Gen. Stat. § 7A-66, which establishes a number of grounds on which a district attorney can be removed from office.  Sutton was appointed to present evidence against Cline at a hearing before Superior Court Judge Robert Hobgood.  On March 2, 2012, Judge Hobgood found that Cline had engaged in conduct “prejudicial to the administration of justice which brings the office into disrepute” under N.C. Gen. Stat. § 7A-66(6), and removed her from office.  Cline appealed.

The court appointed Burton Craige to manage the response to Cline’s appeal.  Burton worked with Sutton and Patterson Harkavy attorney Narendra Ghosh to defend Judge Hobgood’s removal order.  On October 1, a unanimous panel of the North Carolina Court of Appeals published an opinion affirming Judge Hobgood’s order removing Cline from her office.

The News and Observer has engaged in extensive coverage of the controversy, including an investigative series entitled “Twisted Truth: a Prosecutor Under Attack.”  More recent articles explore Burton’s role as court appointed independent counsel and discuss Monday’s Court of Appeals decision.

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Burton and Narendra Secure Court of Appeals Win in Medical Malpractice Discovery Dispute

In Hammond v. Saini, __ N.C. App. ___, 748 S.E.2d 585 (2013), the Court of Appeals ruled in favor of Patterson Harkavy’s client, Plaintiff Judy Hammond.  Ms. Hammond suffered severe injuries from an operating room fire while undergoing surgery to remove a possible basal cell carcinoma from her face.  In her subsequent medical malpractice suit, the Defendants refused to produce certain documents addressing the fire and notes made by the hospital’s risk manager following the fire.  The trial court rejected the Defendants’ argument that these items were privileged and granted Ms. Hammond’s motion to compel discovery.  Burton Craige and Narendra Ghosh represented Ms. Hammond on Defendants’ appeal of that decision.

On September 3, a Court of Appeals panel published a unanimous opinion in favor of Ms. Hammond, affirming the order compelling production of the Defendants’ reports, and remanding the issue of whether the risk manager’s notes were protected by the Work Product Doctrine to the trial court.  For more information, read Burton and Narendra’s brief to the Court of Appeals.

 

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Mike and Narendra Secure Fourth Circuit Victory for Union

The Fourth Circuit Court of Appeals ruled in favor of Patterson Harkavy’s client in Int’l Bhd. of Elec. Workers, AFL-CIO, Local Union No. 289 v. Verizon S., Inc., No. 12-2013, 2013 WL 3770706 (4th Cir. July 19, 2013).

The case arose from a dispute surrounding Verizon’s termination of employee Brian Pollard.  Verizon sought to avoid arbitration of the controversy, claiming that Mr. Pollard was only a probationary employee without the right to arbitrate his discharge under the Union’s collective bargaining agreement.  Representing the Union in the Middle District of North Carolina, attorneys Narendra Ghosh and Mike Okun filed a motion to compel arbitration.  In January of 2012, Magistrate Judge Trevor Sharp recommended that the Union’s motion to compel arbitration be granted.  Following the Recommendation’s adoption by Judge William Osteen, Jr., Verizon South appealed to the Fourth Circuit.

In an opinion issued last week, the Fourth Circuit unanimously affirmed the District Court’s ruling, finding that both the Collective Bargaining Agreement and a separate agreement were “at minimum, reasonably susceptible to the interpretation that the Union advances.”  Since doubts as to whether an arbitration clause covers a given dispute are resolved in favor of coverage, the Fourth Circuit found it appropriate to compel arbitration of the dispute.

Congratulations to Mike and Narendra on the win!

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Rawls Prevails in Court of Appeals in Workers’ Compensation Case

The North Carolina Court of Appeals ruled in favor of one of the firm’s clients in an appeal brought by the defendants.  In Rawls v. Yellow Roadway Corporation, the Full Commission awarded Veran Rawls ongoing total disability compensation since his 2005 truck accident.  Defendants argued that the Full Commission had erred in several findings of fact, claiming that they were not based on competent medical evidence.  The Court rejected all of these arguments and affirmed in full the Commission’s decision.  Hank Patterson and Narendra Ghosh represented Mr. Rawls in the appeal.

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NC COA Examines Public Duty Doctrine

The North Carolina Court of Appeals reversed the decision of the North Carolina Industrial Commission in Ray v. NC Department of Transportation.  The case involved the death of a motorist and her passengers in 2002 when an eroded section of pavement caused her vehicle to go off the roadway, she corrected, and hit an oncoming car head on.  The plaintiff alleged that that NC DOT was negligent in maintaining the roadway and not repairing the eroded section which they knew was dangerous or should have known was a dangerous to motorists.  The Commission dismissed the case based on the public duty doctrine which can be used as a defense by the State of North Carolina from certain tort claims.  Reversing, the Court of Appeals concluded:

“ This case does not involve a failure to inspect or to police, but a failure to repair a defective section of roadway. There is no “hazard created by others” or important discretionary decision which requires the government to be protected under the public duty doctrine.”

Burton Craige wrote an amicus brief on behalf of the North Carolina Advocates for Justice for this case.  The brief can be accessed here.

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ATU 1328 Prevails in Arbitration Case in Federal Court

In, Cape Fear Public Transit Authority v. Amalgamated Transit Union (ATU) Local 1328, the Wilmington transit authority is challenging a labor arbitration in favor of the Union, which ordered a terminated employee be put back to work.  This case is before federal Judge Boyle in the Eastern District of North Carolina.  Yesterday, Judge Boyle ruled for the Union, concluding that there were no grounds to reverse the arbitration decision.  Finding the city’s lawsuit to be “without justification,” Judge Boyle also awarded the Union its attorneys’ fees for defending this case.  Here is the opinion.  Mike Okun and Narendra Ghosh are representing the Union.

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Patterson Harkavy Prevails in Workers’ Comp Case In Court of Appeals

In Campbell v. National Pipe and Plastics Inc. the Plaintiff, Sherron Campbell, was represented in part by Narendra Ghosh of Patterson Harkavy.  The North Carolina Court of Appeals ruled for the plaintiff in affirming the North Carolina Industrial Commission’s Opinion and Award, which had awarded workers’ compensation benefits to Ms. Campbell.

Ms. Campbell suffered injuries to her right hand and fingers when attempting to stop her fall by grabbing a nearby pipe.  This injury and resulting disability also aggravated Ms. Campbell’s depression, which had been manageable up to this point.  In the appeal, the defendants contended that the Commission erred in assigning weight to Dr. Williams’ testimony, arguing that they considered it to be speculative because he did not identify a specific degree to which Ms. Campbell’s compensable injury by accident had exacerbated her preexisting condition.   However, the Court held that Dr. Williams did not need to determine to what degree the workplace injury exacerbated the psychological condition, but only that it was a factor in the exacerbation of Ms. Cambell’s preexisting condition.  The defendants also contended that the Commission did not determine if plaintiff’s statements to her doctor were credible, but the Court ruled that a doctor is entitled to rely on information provided by the patient to form his opinion.  And, in any event, the Court of Appeals does not have authority to reweigh evidence or credibility determinations after the Commission has considered it.  Defendants’ final argument that the Commission erred in giving weight to Dr. Prakken’s opinion was overruled by the Court, which concluded that the Commission does not need to explain why it has given weight to particular evidence.

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